“Let Them Enforce It”: The Supreme Court and the Cherokee Cases Kristopher Maulden Kristopher Maulden, a Junior history major at Eastern Illinois University, was recently inducted into the Epsilon Mu Chapter of Phi Alpha Theta. This paper was written for Dr. Lynne Curry’s US Constitution and Nation course in Spring 2001. Historians often relegate the Cherokee cases to a secondary role in American history for a number of reasons but mainly because the cases never truly figured largely in the controversies that created them. Worcester v. Georgia should have aggravated the states' rights debates of the 1830s and it should have settled the official stance the United States took in protecting Indian nations from individual state interests, but it did neither. History seems to have decided that the Cherokee cases failed to affect American policy and political practice because of the cases’ irrelevance at the time they were heard. However, the Cherokee cases did not fail merely because they were inconsequential. Instead, they failed because the events surrounding them made the cases inconsequential. Many problems within the United States government led to the Cherokee cases' failures. Among them are the U.S. Supreme Court's lack of real power and President Andrew Jackson's refusal to enforce even the simplest of laws--or in this case decisions--when they interfered with his interests. Although the decisions were at times sweeping but always extremely well-crafted, Jackson's abuse of the presidency led to the consequences described above and, ultimately, the forced removal of the Cherokee and many other Indian nations.[1] Before comparing the Cherokee cases with other events of the Jackson administration, the history of the cases must be considered and understood. Georgia had wanted the lands of the Cherokee and the neighboring Creek nations since the end of the American Revolution, if not earlier. After the Revolution, the state claimed one hundred million acres of land, which included Cherokee and Creek lands and encompassed all of present-day Alabama and Mississippi.[2] Georgia even claimed land that belonged neither to Great Britain before the Treaty of Paris nor to the United States afterward but instead belonged to Spain.[3] The federal government did not respect Georgia’s claims, however, and moved to protect the Indians from Georgia's encroachments. The federal government and the Cherokee signed the Treaty of Hopewell on November 28, 1785, which guaranteed the Cherokee the protection of the United States.[4] The Creek nation also made a treaty with the United States, the Treaty of New York, in 1790 to protect them from Georgia's aggression. The United States went so far as to guarantee the Creeks any contested lands between the Indian nation and Georgia and even returned some lands that Georgia had claimed for itself.[5] This in effect allowed the federal government to limit Georgia's size by guaranteeing land to the Creeks that the state wanted.[6] Georgia continued to claim the lands, though, and the federal government had to agree to remove the Indians at some point in the future in order to end the conflict. This agreement, known as the Compact of 1802, also stipulated that Georgia would no longer claim lands to the west that the government had set aside as Indian lands. Still, removal was not a viable option in 1802, quite simply because the federal government had nowhere to send the Indians. Only after the Louisiana Purchase did the United States gain a vast tract of land to the west, which in turn made removal seem possible. After all, many Americans thought the massive land purchase could easily support the Indians east of the Mississippi as well as those already in the Louisiana Purchase. Thus, public and legislative support for removal grew throughout the United States. Immigrants and older Americans saw Indian lands as somewhere they or their children could settle and make a living. Others saw Indian removal as part of national expansion, which also included the expulsion of the Spanish from Florida and the West. Still others saw removal as part of America's mission to bring Western civilization to all of North America.[7] Public policy followed public feeling, as it usually does over time, and in December of 1829 Andrew Jackson presented the Indian Removal Bill to Congress, which would increase federal efforts to move the Cherokee and other tribes across the Mississippi River. The Congressional members of the embryonic Whig party strongly opposed the Bill, and in a vote along party lines in the Senate, Jackson and his Democrats won by a twenty-eight to nineteen tally.[8] However, the Whigs ground the Bill to a halt in the House, forcing a tie vote. In response, Jackson told the Democrats he was hinging his administration's success on the Indian Removal Bill, and "he pressured and bullied, and the original legislation passes in the House by a vote of 102-97.”[9] Jackson then promptly signed it into law in late May 1830. At the same time, Georgia had made a series of laws encroaching on Cherokee rights. In retaliation, Cherokee chief John Ross decided that the Cherokee had little choice but to sue in federal court to stop the state from enacting its laws.[10] The Cherokee seemingly had the law on their side; Article IX of the Articles of Confederation as well as numerous acts of the Continental Congress set out to give the United States sole power over Indian affairs by stipulating that treaties could only be made by federal diplomats. Additionally, Article I, Section 10 of the Constitution barred states from entering into treaties and Article I, Section 8 gave the federal government the sole power to negotiate with Indian nations.[11] Also, the Treaty of Hopewell appeared to favor the Cherokee. Article III gave the federal government sole protection over the Cherokee, as was discussed above. Also, Article IX gave the United States over the Cherokee nation the "sole and exclusive right of regulating the trade...and managing all their affairs in such a manner as they think proper.”[12] Georgia's interference in Cherokee affairs appeared plainly unconstitutional and in violation of the Treaty of Hopewell, and the Cherokee hoped that the Supreme Court would see the state's actions as such. The Cherokee decided to pursue original jurisdiction from the Supreme Court under Article III, Section 2, which states: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases...between a State or the citizens thereof, and foreign states, citizens, or subjects.[13] They said that the Court could originally rule because the Constitution plainly declared that "judicial power of the United States shall be vested in one Supreme Court.”[14] The Cherokee claimed that they were a foreign state, satisfying the conditions of Article III, Section 2, and so the Supreme Court should take the case. Additionally, they sued under the Supremacy Clause in Article VI, which states: This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.[15] They also used Article I, Section 10, known as the Obstruction of Contracts Clause, to make their case; the Obstruction of Contracts Clause, as it appears in the Constitution, says that: No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.[16] The Cherokee used these passages to claim that Georgia had made its own laws in contradiction with the Treaty of Hopewell, which was a treaty of the United States and therefore had precedence over Georgia's laws. They said Georgia was also obstructing a contract between the United States and the Cherokee, describing treaties as "contracts of the highest character and of the most solemn obligation.”[17] Because Georgia was acting unconstitutionally, the Cherokee sought an injunction against the execution of Georgia's laws. The Supreme Court decided to take the case in March of 1831, naming it Cherokee Nation v. Georgia. Georgia never replied to the Cherokee claims or the Court's announcements before the case, though; instead, the state asserted that the Supreme Court had no power to oversee a state's business. Even so, Georgia lobbied Congress during arguments of Cherokee Nation v. Georgia to limit the powers that the Supreme Court had under Section 25 of the Judiciary Act of 1789. In the Judiciary Act, Congress had allowed the Supreme Court to declare a state law unconstitutional and to grant such an injunction that the Cherokee sought.[18] Georgia's actions will figure largely later in the Cherokee cases, but in 1831 the Supreme Court, and the rest of the United States, were focused on Cherokee Nation v. Georgia. The Court decided by a margin of four votes to two to deny the injunction. John Marshall spoke for the majority in denying that the Cherokee and other Indian nations were independent but were "more correctly...domestic dependent nations.”[19] He said that they were dependent based upon his discovery doctrine.